HVM, LLC v Aadal

[*1] HVM, LLC v Aadal 2010 NY Slip Op 52254(U) [30 Misc 3d 1203(A)] Decided on December 23, 2010 District Court Of Nassau County, First District Fairgrieve, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 23, 2010
District Court of Nassau County, First District

HVM, LLC d/b/a Extended Stay America Long Island - Bethpage, Petitioner(s)

against

Mark Aadal, Respondent(s)



LT-002571-10



Peter H. Levy, Esq., Attorneys for Petitioner, 366 North Broadway, Suite LW-1, Jericho, New York 11753, 516-822-5800; Favata & Wallace, LLP, Attorneys for Respondent, 229 Seventh Street, Garden City, New York 11530, 516-742-9494

Scott Fairgrieve, J.

The Petitioner moves by way of Order to Show Cause, to amend the Judgement of Possession and Warrant of Eviction dated July 8, 2010 signed by the Hon. Scott Fairgrieve. The Respondent opposes the Order to Show Cause. The Petitioner filed a Reply.

The Petitioner commenced this non-payment proceeding to recover possession of Room 203 at a hotel located at 905 South Oyster Bay Road, Bethpage, New York. On July 7, 2010, this matter was settled by way of a Stipulation of Settlement. The Stipulation provided that Respondent, Mark Aadal, was to vacate Room 203 on or before August 31, 2010. If timely vacated, the Petitioner waived its request for a money judgment. However, if Respondent failed to vacate by August 31, 2010, Petitioner shall be entitled to a money judgment in the sum of $5,988.57.

It is uncontroverted that Respondent failed to vacate in a timely manner. The Petitioner contends that on September 1, 2010 the Judgment of Possession and Warrant of Eviction were [*2]delivered to the Sheriff for execution. Petitioner further contends that Respondent remained in Room 203 through Labor Day weekend September 4th - 6, 2010 and that due to a potential health hazard at the hotel, Respondent was instructed to temporarily move to Room 201 for safety reasons. As Petitioner points out, this was not meant to change or amend the terms of the settlement agreement [see, Reply Affidavits, Rosa and Cabrera].

In Opposition to the Order to Show Cause, the Respondent contends that since he vacated Room 203, albeit untimely, and now resides in Room 201, the Warrant of Eviction and Judgment of Possession are meaningless and the Court lacks jurisdiction to proceed with the eviction. The Court, however, disagrees.

To begin with, a stipulation of settlement is a contract. Where a contract is straightforward and unambiguous, its interpretation is a question of law for the Court (West, Weir & Bartel v. Carter Paint Co., 25 NY2d 535, 307 NYS2d 449 [1st Dept 1966]). In addition, when interpreting the words of a contract, whether written or verbal, "[t]he words must be accorded their fair and reasonable meaning (Albanese v. Consolidated Rail Corp., 245 AD2d 475 [2d Dept 1997]) and the Court is to arrive at a construction so that there is a reasonable realization of the parties' expectations" (Patrick v. Guarniere, 204 AD2d 702 [2d Dept 1994]).

Moreover, "all contracts imply a covenant of good faith and fair dealing in the course of performance" (511 West 232nd Owners Corp. v. Jennifer Realty Co., 98 NY2d 144, 153; see also, Smith v. General Acc. Ins., 91 NY2d 648). Only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident, will a party be relieved from the consequences of it (see, Matter of Frutiger, 29 NY2d 143, 149-150, 324 NYS2d 36 [1971]).

In addition, "courts may not rewrite an agreement between parties" (see, Matter of Evans v. Board of Assessment Review of Town of Catskill, 284 AD2d 753, 755, 727 NYS2d 706 [3d Dept 2001]) and "a court should not, under the guise of interpretation, make a new contract for the parties" (see, Sklerov v. Sklerov, 231 AD2d 622, 647 NYS2d 532 [2d Dept 1996]). Furthermore, Courts will not set aside a contract merely because in "hindsight" a party decides that the terms of the contract were "improvident" (see, Town of Clarkstown v. M.R.O. Pump & Tank, 287 AD2d 497, 731 NYS2d 231 [2d Dept 2001]).

In the instant case, the Court finds the Stipulation of Settlement to be a binding agreement between the parties. The terms are clear and unambiguous and required Respondent to vacate by August 31, 2010. Moreover, the contract was signed by all parties after the advice of legal counsel. Accordingly, the Court will enforce the contract according to its terms.

While the issuance of a warrant of eviction does annul the landlord-tenant relationship (RPAPL §749[3]), a summary proceeding remains pending until execution of the warrant (see, 203 E. 13th Street Corp. v. Lechycky, 67 Misc 2d 451, 324 NYS2d 560 [App Term 1st Dept 1971]). Moreover, a District Court may grant relief, in appropriate circumstances, from its own [*3]judgments or orders, even after a warrant's execution (CPLR 5015; Uniform District Court Act §212; see also, Third City Corp. v. Lee, 41 AD2d 611, 340 NYS2d 654 [1st Dept 1973]; Oppenheim v. Spike, 107 Misc 2d 55, 437 NYS2d 826 [1980]; Tku-Queens Corp. Inc. v. Mabel Food Corp., 90 Misc 2d 48, 393 NYS2d 272 [1977]).

In the instant case, the Petitioner seeks to amend the judgement of possession and warrant of eviction to reflect Room 201 (where Respondent is now arguably squatting and paying no rent) instead of Room 203 which was the subject of this summary proceeding.

CPLR 3025[c] permits the Court to amend pleadings to conform to the evidence in the Court's discretion, "during or after trial", so long as no undue prejudice results (see, Rothstein v. City of New York, 194 AD2d 533, 599 NYS2d 39 [2nd Dept 1993] citing to Dittmar Explosives, Inc., v. A.E. Ottaviano. Inc., 20 NY2d 498, 285 NYS2d 55). In deciding whether to permit the amendment, the Court must consider such factors as the delay in moving, surprise, and significant prejudice, the latter being the foremost consideration (see, Murray v. City of New York, 43 NY2d 400, 401 NYS2d 773); East Haven Associates Inc., Gurian, 64 Misc 2d 276, 313 NYS2d 927 [1970]).

The Court finds that Respondent's conduct, in moving to Room 201, in order to purposefully avoid being evicted pursuant to this Court's judgment and warrant, justifies the relief sought by Petitioner. Morever, Respondent's behavior arguably invokes the doctrine of "unclean hands". Lastly, it must be noted that Respondent's behavior in no way overrides or changes the terms of the settlement agreement, whereby a vacatur date of August 31, 2010 was agreed to by all parties. The Respondent has now had the benefit of residing in the premises some four months beyond that agreed upon date.

Accordingly, the Judgment of Possession and Warrant of Eviction are hereby amended to include Room 201 at the hotel located at 905 South Oyster Bay Road, Bethpage, New York. Moreover, the Petitioner is awarded a money judgment in the sum of $5,988.57.

All stays are hereby vacated and the eviction of Respondent shall proceed forthwith.

This Constitutes the Decision and Order of the Court.

So Ordered:

/s/ Hon. Scott Fairgrieve

DISTRICT COURT JUDGE

Dated:December 23, 2010